By Dr Minh Alexander NHS whistleblower and former consultant psychiatry, 30 September 2020
|Summary: This is a brief post chiefly for the benefit of any trust staff currently suffering at Nottinghamshire Healthcare NHS Foundation Trust following an ineffective case review by the National Guardian two years ago. Since the National Guardian’s review, 19 Employment Tribunal claims have been made against the trust, including claims for whistleblowing detriment. One of the employees concerned has been gagged, but the trust denies gagging whistleblowers. I have asked the trust CEO to personally verify this and I have asked NHSI to independently audit the trust’s use of non disclosure agreements. In this period, a vast number of requests have also been made to the trust for personal data, by 4556 patients and 58 staff, suggestive of unresolved issues of poor culture. Moreover, nine complaints have been made to the Information Commissioner about the trust’s handling of requests for personal data, seven of which resulted in follow up action by the Commissioner.|
The National Guardian neither has the powers nor appetite to do what her Office was primarily established for: To provide independent review of NHS whistleblowers cases which had been handled badly by their employers and ensure corrective action.
The original vision set out in the Freedom To Speak Up Review report of 2015 included a role for the National Guardian to ensure redress for mistreated whistleblowers:
“….to advise the relevant NHS organisation, where any failure to follow good practice has been found, to take appropriate and proportionate action, or to recommend to the relevant systems regulator or oversight body that it make a direction requiring such action. This may include:….offering redress to any patients or staff harmed by any failure to address the safety risk”
“suggesting support and remedies for former employees”
The National Guardian and her funders (the Care Quality Commission and NHS England/ Improvement) have since washed their hands of this crucial duty to help ensure redress, and the chilling effect of gibbeting remains.
Neither does the National Guardian investigate whistleblowers’ original concerns – she merely superficially reviews how they have been handled.
The National Guardian has no enforcement powers. She only hands evidence of failings onto NHS Improvement for action. From whistleblowers’ experiences, NHS Improvement does very little with the intelligence.
Some whistleblowers whose cases have been the subject of National Guardian reviews have complained of continuing cover ups and of being abandoned.
A recent Byline Times investigation reported such a case.
In truth, the National Guardian’s main contribution has been propaganda for the government, pumping out a false narrative that it is safer to speak up than it really is.
One particularly distasteful aspect of the relentless spinning is the annual October “Speak Up Month”, when the National Guardian leads intensified PR by her Office and by local trust guardians. The purpose is to give a superficial impression that speaking up is joyous, just before NHS staff complete the annual staff survey which includes questions about how they perceive the risk of speaking up in the NHS.
Speak Up Month is a sad spectacle of wasted public resources, manipulation, self-promotion, selfies and empty gestures. A million miles from the wreckage of lost jobs, ill health and long term unemployment of whistleblowers whom the National Guardian has failed to help in her four years in post.
The disrespectful and cynical Speak Up Month is going ahead this year too, starting tomorrow. This is despite the COVID-19 crisis and draconian suppression of NHS staff’s concerns about PPE and other serious infection control issues that has been so plain to all.
Meanwhile, FOI data about one of the trusts that the National Guardian reviewed shows serious continuing problems, as follows below.
Nottinghamshire Healthcare NHS Foundation Trust
Nottinghamshire Healthcare NHS Foundation Trust was reviewed by the National Guardian in May and June 2018, following complaints that whistleblowers had been ignored and punished.
An FOI disclosure by the trust has now revealed a large number of Employment Tribunal (ET) claims against the trust since the publication of the National Guardian’s review report in 2018.
There have been a total of 19 such ET claims.
Of huge concern, these claims included whistleblowing detriment:
“Response to the information requested
1) How many Employment Tribunal claims have been made against the trust? 19
2) Please give the numbers of ET claims under each heading of claim, including:
– Unfair dismissal –10
– Unlawful Deduction from Wages – 6
– Public Interest Disclosure < 3
– Sex Discrimination < 3
– Age Discrimination < 3
– Race Discrimination < 3
– Religion or Belief Discrimination < 3
– Marital/Civil Partnership Status < 3
– Other < 3“
Also of concern, the FOI disclosure revealed that one of these ET claims was settled and that the employee was gagged with confidentiality and non-disparagement clauses:
“3) How many of the total number of ET claims, for the period 1 April 2018 to the present time, have been settled? 1
4) How many of these settlements relating to ET claims received since 1 April 2018 have contained confidentiality clauses such as:
a) clauses which prevent signatories from disclosing the existence of the settlement – 0
b) clauses which prevent signatories from disclosing the contents of the settlement –1
c) clauses which prevent signatories from disparaging the other party? – 1”
The trust has specifically denied gagging any whistleblowers, but is this to be believed?
“5) Since 1 April 2018, has the Trust entered into any settlements with workers who have made an ET claim under the Public Interest Disclosure jurisdiction? – 0“
I have asked the Trust CEO to personally confirm if this is correct. I have also asked NHS Improvement to audit Nottinghamshire Healthcare’s use of gags and the above gag in particular.
Moreover, there have been an extraordinarily large number of subject access requests to the trust by both staff and patients for their personal data. This is usually a sign of dispute and conflict.
FOI ref 5070 29 September 2020 by another party shows a total of 4614 subject access requests to the trust since 1 April 2018:
“1. How many subject access requests for personal data has the trust received since 1 April 2018?
4614 requests received since April 2018.
2. How many of these subject access requests for personal data, since 1 April 2018, were made by patients or on behalf of patients?
Patients – 4556.
3. How many of these subject access requests for personal data, since 1 April 2018, were made by trust staff?
Staff – 58.
4. What was the average length of time taken by the trust to respond to the subject access requests for personal data the trust has received since 1 April 2018?
The data recorded for the average length of time taken includes requests from the following directorates – General Health, Mental Health and Forensics. The average length of time taken, by these directorates to process and respond to a subject access request is 44 days.”
I will send this evidence to the CQC, particularly because it raises questions about the trust’s communication and rapport with patients.
An FOI disclosure by the Information Commissioner’s Office showed that since 1 April 2018, nine complaints were made to the ICO about Nottinghamshire Healthcare’s responses to subject access requests, with 6 complaints made since 2019:
So overall, it looks like business as usual.
Will such continuing evidence of failure curb the insulting Speak Up Month?
Nope, judging by the last two years’ shameless spinning by the National Guardian.
Public office just isn’t what it used to be.
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